8. 4 (1). Signature. flour as it had not been sent in a week as agreed. There was no term as to time of delivery in the contract. B.'s letter and A.'s book do not form a good memorandum, as they falsify the contract insisted on by A. Cooper v. Smith (1812), 15 East, 103 (i). 8. B. buys of A. some chimney glasses for 387. 108. 6d., deliverable at C.; on delivery, the glasses being cracked, B. writes: "In reply to your letter of the 1st inst., I beg to say that the only parcel of goods selected for ready money was the chimney glasses, amounting to 381. 108. 6d., which goods I have never received, and have long since declined to have for reasons made known to you at the time, &c." This is a good memorandum, as it contains all the terms, though it also repudiates the bargain. Bailey v. Sweeting (1861), 30 L. J. Č. P. 150. 9. A. agrees to sell to B. 100 tons of pig iron by monthly deliveries of twenty-five tons in March to June. Three instalments are duly delivered. In June B. requests A. to postpone the delivery of the remaining twenty-five tons. After June A. tenders the twenty-five tons. A. may recover on the original contract, and may prove by parol B.'s request, as A. merely voluntarily forbore to press B., and no memorandum of the mere postponement is necessary. Hickman v. Haynes (1875), L. R. 10 C. P. 598 (k). Be made and signed by the party to be charged.—" It is well settled that the only signature required is that of the party against whom the contract is to be enforced. The contract, by the effect of the decisions, is good or not at the election of the party who has not signed" (1). The word "party," therefore, has been substituted for the word "parties" in the 17th section of the Statute of Frauds. The effect of the cases on the subject of signature may be summed up as follows:-Neither subscription (m) nor handwriting (n) is necessary. All that is necessary is that the name of the party to be charged (o), or of his agent (p), or some sign, stamp, or mark intended to represent it (q), should appear upon the memorandum in such a position, in relation to its various parts, as to govern the whole of the instrument, and be placed there with the intention of recognizing it as having such effect (m). "When the signature is not placed in the usual way at the foot of the written or printed paper, it becomes a question of intention, a question of fact to be determined by the other circumstances of the case, whether the name so written or printed in the body of the instrument was appropriated by the party to the (i) Followed in Richards v. Porter (1827), 6 B. & C. 437. (4) See the cases in Benj. pp. 189, 190, 692-696. (1) Benj. p. 231. (m) Per Lord Westbury in Caton v. Caton (1867), L. R. 2 H. L. 127; Evans v. Hoare, [1892] 1 Q. B. 593. (n) Schneider v. Norris (1814), 2 M. & S. 286. (0) Evans v. Hoare, supra. (p) White v. Procter (1812), 4 Taunt. 209. (2) Bennett v. Brumfitt (1867), L. R. 3 C. P. 28. recognition of the contract (r). And such recognition of the signature may take place by subsequent oral acknowledgment (s). S. 4 (1). intuitu. It is submitted that, as the memorandum required by this Signature section is not necessarily the contract itself, but only evidence of affixed alio it, a signature, if otherwise sufficient, is not invalidated as such by the fact that it is affixed alio intuitu, and that the reasoning of the Court in Jones v. Victoria Graving Dock Co. (t) is sound. In the case of a sample, "though it be delivered partly alio intuitu, namely, as a sample of quality, it does not, therefore, prevent its operating to another consistent intent also in pursuance of the purposes of the parties . . . . namely, as a part delivery of the thing itself" (u); and so in the same way an earnest may also be a part payment. The same principle would, it is apprehended, apply to the other requirement of this section, viz., the signature to the memorandum. "The question is not with what intent the document is signed, but whether it is de facto drafted and signed by the party to be charged" (x). But see Eley v. Positive Assurance Co. (y). ILLUSTRATIONS [of the Signature]. 1. A. sends B. a bill of parcels thus: "B. bought of A. cotton yarns and piece goods, &c." All the bill except B.'s name is printed, and B.'s name was filled in in writing by A. A., by writing B.'s name, has appropriated his own printed name to the contract as a signature. Schneider v. Norris (1814), 2 M. & S. 286 (~). 2. B. writes in his book a memorandum of the terms of a sale, and heads it "Sold B." He then requires A.'s agent, C., to sign at the foot. B. has appropriated his written name at the head of the memorandum as his signature to the contract, as he required C. also to sign it. Johnson v. Dodgson (1837), 2 M. & W. 653 (z). 3. A. agrees to sell B. a ship, and draws up a memorandum of the terms of the sale, which he sends to B. B. makes certain amendments, and then signs and returns the memorandum to A., who strikes out B.'s amendments and inserts fresh ones. B. assents verbally thereto. This is a good signature by B. to the memorandum as last altered, as parol evidence is allowable to show the state of the document when it became a contract, and B. had retrospectively recognized his previous signature. Stewart v. Eddowes (1874), L. R. 9 C. P. 311. Or his agent in that behalf.-"The agency may be proved by parol, as at common law, and may be shown by subsequent (r) Benj. p. 234. (s) Stewart v. Eddowes (1874), L. R. 9 C. P. 311. (t) (1877), 2 Q. B. D. 314. (u) Per Lord Ellenborough in Hinde v. Whitehouse (1806), 7 East, at p. 570. (z) Per Smith, L.J., in In re Hoyle (1892), 62 L. J. Ch. 188. (y) (1875), 1 Ex. D. 20. (2) Followed in Durrell v. Evans (1861), 31 L. J., Ex. 337; 6 H. & N. 660, and Evans v. Hoare, [1892] 1 Q. B. 593; and see, on the question of signature (as regards its position), Caton v. Caton (1867), L. R. 2 H. L. 127. S. 4 (1). Auctioneers. Brokers. Broker's books and notes. ratification, as well as by antecedent delegation of authority (a). . . . It is necessary that the agent be a third person, and not the other contracting party" (b). And the signature must be by the agent quà agent, e. g., not merely as witness (c). With regard to particular agents: An auctioneer is primarily the seller's agent (d); but at a public sale (e) the buyer, at the moment when the goods are knocked down, prima facie (f) constitutes him an agent to make and sign a memorandum of the sale (g). An auctioneer's clerk is not prima facie the buyer's agent (h), but the facts may show that he was so appointed (i). "When a broker has succeeded in making a contract, he reduces it to writing, and delivers to such party a copy of the terms as reduced to writing by him. He also ought to enter them in his book, and sign the entry. What he delivers to the seller is called the sold note; to the buyer the bought note. No particular form is required, and from the cases it seems that there are four varieties used in practice" (k). "When the bought and sold notes and the entry in the broker's books all correspond, no dispute can arise as to the real terms of the bargain; but it sometimes happens that the bought and sold notes differ from each other, and even that neither corresponds with the entry in the book. It then becomes necessary to determine the legal effect of the variance. . . . As regards the signed entry in the broker's book, it has been held at different times that it did, and that it did not, constitute the contract, and it has also been held that it was not even admissible in evidence, or at all events, not without proof that the entry was . . . assented to " (1). The law, as it appears from the cases, with regard to broker's books and notes, may be thus shortly summarized : : (1.) The entry in the broker's book is the primary evidence of the contract (m); but consistent and sufficient notes, if varying (a) M'Lean v. Dunn (1828), 4 Bing. (b) Sharman v. Brandt (1871), L. (e) Emmerson v. Heelis (1809), 2 notes thereon. (g) Benj. pp. 246-248. (h) Pierce v. Corf (1874), L. R. 9 Q. B. 210. (i) Bird v. Boulter (1833), 4 B. & Ad. 443. (k) Benj. p. 251. For the various forms of notes, see ibid. (7) Benj. p. 253. (m) Sievewright v. Archibald (1851), 17 Q. B. 103, 115. See also on the consistency of the notes, Caerleon Tin Plate Co. v. Hughes (1891), 60 L. J. Q. B.640. from the entry, may be evidence of a new contract according to their terms (n). So also (there being no entry, but the contract being by correspondence) when the notes vary from the correspondence (o). (2.) If there be no, or an insufficient, entry, consistent and sufficient notes together may form a memorandum (p); and either note, if sufficient, may also be such a memorandum, in the absence of proof of variance from the other note or the entry (q). ILLUSTRATIONS [Agent for Signature]. 1. A. agrees to sell goods to B. on the terms that the price payable shall go in reduction of a sum of 2007., in which A. was indebted to B., the price payable to be settled at auction. At the auction the goods are knocked down by C., the auctioneer, to B. for 1457. C. is not B.'s agent to bind him by a signature to any conditions of sale, as the facts show that the real sale was not at auction. Bartlett v. Purnell (1836), 4 A. & E. 792. 2. A., an auctioneer, sells goods to B., and on the lot being knocked -down, C., A.'s clerk, calls out B.'s name. B. then nods, and C. enters B.'s name as buyer. B. has constituted C. his agent to sign the conditions of sale. Bird v. Boulter (1833), 4 B. & Ad. 443. 3. A. agrees to sell a quantity of hops to B. C., A.'s agent, in the presence of A. and B., makes a memorandum of the terms of the sale in duplicate, putting a certain date upon it, which B. requests him to alter. B. then takes away his part of the memorandum. B. has constituted C., A.'s agent, as his own agent to sign the document. Durrell v. Evans (1862), 31 L. J. Ex. 337. S. 4 (1). Sub-s. 2 re-enacts the provisions of Lord Tenterden's Act: see ante, p. 23 ("A contract for the sale"). S. 4 (2). Sub-s. 3 defines acceptance under s. 4: see ante, p. 30 ("Acceptance"). S. 4 (3). S. 4 (4). In Scotland the contract is completed by mutual consent without delivery, and without writing or any other solemnity. See Brown on Sale, s. 4; Bell on Sale, p. 63; 1 Bell, Illustr. p. 89. Subject-matter of Contract. future goods. 5.-(1.) The goods which form the subject of a Existing or contract of sale may be either existing goods, owned or possessed by the seller, or goods to be manufac (n) Hawes v. Forster (1834), 1 M. & R. 368, explained in Sievewright v. Archibald (1851), 17 Q. B. 103, 115. (0) Heyworth v. Knight (1864), 17 C. B. N. S. 298. (p) See note (m), supra. (q) Hawes v. Forster, supra; Parton v. Crofts (1864), 16 C. B. N. S. 11. In one case variance with the other S. 5. S. 5 (1). tured or acquired by the seller after the making of the contract of sale, in this Act called "future goods." (2.) There may be a contract for the sale of goods, the acquisition of which by the seller depends upon a contingency which may or may not happen. (3.) Where by a contract of sale the seller purports to effect a present sale of future goods, the contract operates as an agreement to sell the goods. Or possessed. These words appear to refer to cases where the seller has not the "general property" in the goods, but at most a special property. See Part II. of the Act on transfer of title, s. 21 et seq. This sub-section is declaratory of the previous law. Mr. Benjamin says: "In relation to executory contracts for the sale of goods not yet belonging to the seller, Lord Tenterden held, in an early case (r), at nisi prius, that if goods be sold, to be delivered at a future day, and the seller has not the goods nor any contract for them, nor any reasonable expectation of receiving them on consignment, but intends to go in the market and buy them, it is not a valid contract, but a mere wager on the price of the commodity. But this doctrine is quite exploded, and Bryan v. Lewis was expressly overruled . . . in Hibblewhite v. McMorine (s), and Mortimer v. McCallan" (t). Subject of a contract of sale.-A sale must be intended. If the transaction, though in the form of a contract of sale of future goods, be, or involve, a wager, it will be void under 8 & 9 Vict. c. 109, s. 18, which is preserved by s. 61 (2) (3). ferences only may be agreed to be paid (u); ment of the price may involve a wager (x). parties gain or lose according to (r) Bryan v. Lewis (1826), R. & M. 386. (s) (1839), 5 M. & W. 462. (t) (1840), 6 M. & W. 58; Benj. p. 86; other cases are Watts v. Friend (1830), 10 B. & C. 446; and Wilks v. Atkinson (1815), 6 Taunt. 11; 1 Marsh. 412. (u) Grizewood v. Blane (1851), 11 C. B. 526, explained in Thacker v. Thus, e. g., difor the ascertainBut, though the the occurrence of some future See Hardy (1878), 4 Q. B. D. 685. (x) Rourke v. Short (1856), 5 E. & B. 904; Brogden v. Marriott (1836), 3 B. N. C. 88; Harper v. Grain, 38 Am. R. 589; cf. Crofton v. Colgan (1859), 10 Ir. C. L. R. 133, where the price only was to be ascertained without a wager. |